quick reference chart and notes for determining immigration - ILRC

More documents

Recommendations

Info

California Quick Reference Chart and Notes February 2010 This also works if the first conviction is for an offense less serious than simple possession that does not have a federal analogue, such as possessing paraphernalia (Cardenas-Uriarte v. INS, 227 F.3d 1132 (9 th Cir. 2000), Ramirez-Altamirano v. Mukasey, 554 F.3d 786 (9th Cir. 2009) (Calif. H&S C § 11364(a). This ought to work for a first conviction for giving away a small amount of marijuana for free (see 21 USC § 841(b)(4)), where the record establishes that the amount was small. Limitations on the Lujan-Armendariz benefit: Probation violation. The Lujan-Armendariz benefit (that a first minor drug conviction is eliminated for immigration purposes by state rehabilitative relief) is not available if the criminal court found that the defendant violated probation before ultimately getting the rehabilitative relief. Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009) (expungement under P.C. § 1203.4 has no immigration effect where criminal court found two probation violations before ultimately granting the expungement.) Prior pre-plea diversion. The Ninth Circuit held that the existence of a prior pre-plea diversion prevented a first possession conviction from coming within Lujan-Armendariz. Melendez v. Gonzales, 503 F.3d 1019, 1026-27 (9th Cir. 2007). Removal proceedings before the plea actually is withdrawn. The Ninth Circuit held that a respondent’s drug conviction continued to exist for immigration purposes, and therefore served as a basis for the man’s deportation, until the date that it is withdrawn. Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9 th Cir. 2004). Therefore counsel should make every effort to keep the defendant away from immigration authorities until after the plea is withdrawn (e.g., attempt to plead to a very short period of probation under P.C. § 1203.4.) However, immigration counsel have strong arguments that Chavez should not apply to California relief such as withdrawal of plea under DEJ or Prop 36, or even under P.C. § 1203.4. Chavez considered a purely discretionary expungement statute with no connection to the controlled substance statutes. See discussion in Defending Immigrants in the Ninth Circuit, § 3.6(H). 5. Except for a first conviction for the minor drug offenses discussed above, any “rehabilitative relief” (i.e., withdrawal of the plea after probation such as DEJ, Prop 36 or PC § 1203.4) has no effect for immigration purposes, even though state law may consider the conviction to be utterly eliminated. 6. Do not plead to a possession offense that is punished as a recidivist drug offense. Simple possession of a controlled substance is an aggravated felony if a prior drug conviction was pleaded and proved at the possession prosecution. The U.S. Supreme Court found that if a prior drug conviction exists but the judge at the subsequent possession case does not make a formal finding of the prior, the possession conviction is not an aggravated felony. 121 If the prosecution wants a drug recidivist plea, either find a different 121 Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (June 14, 2010). This is essentially the rule adopted by the Board of Immigration Appeals. See Matter of Carachuri, 24 I&N Dec. 382 (BIA 2007) (where the prior drug conviction Immigrant Legal Resource Center N-75
California Quick Reference Chart and Notes February 2010 way to accept the desired jail time, or negotiate a plea to recidivist under the influence rather than possession. A plea to being under the influence rather than possession will avoid these issues, because being under the influence is not an aggravated felony even if a prior drug conviction is pleaded or proved. If a first conviction for simple possession is eliminated by rehabilitative relief under Lujan-Armendariz, then the second possession should become the “first” and will not be an aggravated felony. A third conviction should become the worrisome “second,” and will be classed as an aggravated felony only if the Ninth Circuit decides to change its rule. 7. Remember that if the record of conviction does not identify the specific controlled substance, a conviction for offenses under Calif. H&S §§ 11377-11379 and 11350- 11352 is not a controlled substance offense for immigration purposes, and is neither an aggravated felony nor a deportable or inadmissible drug conviction. This will not work for offenses such as possession of paraphernalia, maintaining a place where drugs are used or sold, or sale of a false “look-alike” controlled substance. See Part B, supra. 8. Drug addiction and abuse. A person is inadmissible if she is a “current” drug addict or abuser, and deportable if she has been one at any time since admission to the United States. Dispositions such as drug court or CRC placement that require admission of drug abuse or addiction will trigger these grounds. While in various immigration contexts more relief might be available to someone deportable for this than for a straight conviction, this still can have serious consequences and each case should be analyzed separately. Case examples. These examples illustrate the rules under current law, and assumes that the proceedings described take place within states under the jurisdiction of the Ninth Circuit. You may want to use the drug plea Chart that follows this Note. Example 1: Sam is convicted of felony simple possession of heroin in state court, his first controlled substance offense. Aggravated felony? This is not an aggravated felony in immigration or federal criminal proceedings under Lopez v. Gonzales. No simple possession conviction without drug priors is an aggravated felony, other than possession of flunitrazepam or more than 5 grams of crack. Deportable? As a conviction of an offense relating to a federally recognized controlled substance, it makes Sam deportable and inadmissible. Rehabilitative Relief? If it was a very first drug offense, Sam can eliminate a simple possession conviction for immigration purposes by “rehabilitative relief” such as withdrawing the plea under a deferred entry of judgment, Proposition 36 or PC § 1203.4 provision. was not pleaded and proved in the subsequent possession prosecution, the possession conviction was not an aggravated felony). For further discussion, see Vargas, “Practice Advisory: Multiple Drug Possession Cases after Carachuri-Rosendo v. Holder” (June 21, 2010) at www.immigrantdefenseproject.org/webPages/practiceTips.htm. N-76 Immigrant Legal Resource Center
Page 1 and 2:
California Quick Reference Chart an
Page 3 and 4:
Page 5 and 6:
www.ilrc.org/criminal.php QUICK REF
Page 7 and 8:
www.ilrc.org/criminal.php CALIFORNI
Page 9 and 10:
Page 11 and 12:
Page 13 and 14:
Page 15 and 16:
Page 17 and 18:
Page 19 and 20:
Page 21 and 22:
Page 23 and 24:
Page 25 and 26:
Page 27 and 28:
Page 29 and 30:
Page 31 and 32:
Page 33 and 34:
Page 35 and 36:
Page 37 and 38:
Page 39 and 40:
Page 41 and 42:
Page 43 and 44:
Page 45 and 46:
Page 47 and 48:
Page 49 and 50: California Quick Reference Chart an
Page 99: California Quick Reference Chart an
Page 151 and 152:
Page 153 and 154:
Page 155 and 156:
Page 157 and 158:
Page 159 and 160:
Page 161 and 162:
Page 163 and 164:
Page 165 and 166:
Page 167 and 168:
Page 169 and 170:
Page 171 and 172:
Page 173 and 174:
Page 175 and 176:
Page 177:
show all

quick reference chart and notes for determining immigration - ILRC

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?